United States of America v. David Earl Anderson

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID EARL ANDERSON,
Defendant - Appellant.
No. 11-30221
D.C. No. 3:09-cr-00493-BR-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted July 12, 2012
Portland, Oregon
Before: GOODWIN, PREGERSON, and CHRISTEN, Circuit Judges.
David Earl Anderson appeals his sentence on one count of threatening to kill
President Barack Obama in violation of 18 U.S.C. § 871. At the time of the offense,
Anderson was incarcerated at the Oregon State Penitentiary serving a sentence on
unrelated charges. Anderson pled guilty. The district court sentenced Anderson to
FILED
JUL 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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48 months in custody to be served consecutively to his current sentences for the
unrelated state crimes. Anderson challenges his sentence on the grounds that the
district court erroneously determined that his conduct constituted multiple threats
under U.S.S.G. § 2A6.1, refused to grant departures for coercion, duress and voluntary
disclosure based on § 5K2.12 and § 5K2.16, and denied a reduction for acceptance of
responsibility under § 3E1.1. We affirm.
The district court did not abuse its discretion in determining that, based on the
seven communications that Anderson sent, he made more than two threats against the
President. Under the plain language of § 2A6.1(b)(6), Anderson’s request for a four-
level decrease on the grounds that the mailings amounted to only a single threat was
precluded by this determination. This court’s holding in United States v. Sanders, 41
F.3d 480 (9th Cir. 1994), is inapposite. Sanders was decided before the Guidelines
were amended to make available the two-level enhancement for multiple threats.
The district court did not misinterpret the Guidelines in denying downward
departures for coercion and duress, under U.S.S.G. § 5K2.12, for voluntary disclosure
of the offense, under § 5K2.16, and for acceptance of responsibility, under § 3E1.1.
We find no error in Anderson’s below-Guidelines sentence because the district court
provided adequate reasons, namely the serious nature of Anderson’s conduct, his
continuing threats, and the need to protect against such threats, for rejecting

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Anderson’s arguments as an exercise of its discretion. We conclude that the district
court’s denial of downward departures does not implicate the overall reasonableness
of Anderson’s sentence. See United States v. Dallman, 533 F.3d 755, 760-61 (9th Cir.
2008).
AFFIRMED.

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